CARIBBEAN INTEGRATION LAW: INDIVIDUAL RIGHTS IN CARICOM AND OECS
SALISES Developmental Talks 2014
Dr David S Berry
Dean, Cave Hill Faculty of Law
University of the West Indies
CENTENNIAL: SIR LEWIS’ FOOTSTEPS
 Celebrating Sir Arthur Lewis  We have come a long way since Sir Arthur Lewis’ 1965 essay , “The Agony of the Eight”
 Written after the collapse of the West Indies Federation
 Discussed attempts by Eastern Caribbean territories to form new Federation
 Today’s talk explores a more recent work, my own book on Caribbean Integration Law (Oxford, 2014)
 I will try to trace one theme in the book – the development of individual rights in CARICOM and OECS – and explain its significance for both regional organisations
11/12/2014
(c) Dr David S Berry, 2014
SCOPE OF BOOK
 Before I begin my presentation it may be helpful to briefly describe my book.
 Caribbean Integration Law is the first book to critically examine the new treaty regimes of CARICOM and the OECS –
the Revised Treaty of Chaguaramas and the Revised Treaty of Basseterre – and the original jurisdiction jurisprudence of the CCJ
 It applies rules and principles from various fields of international law – international institutional law, law of treaties, sources of international law, general principles of law
 It critically compares the CARICOM and OECS legal regimes with one another, and with that existing in the European Union (including analysis of the ECJ jurisprudence)
11/12/2014
(c) Dr David S Berry, 2014
OUTLINE OF TALK
1. Overview of Past and Current Treaty Frameworks
 CARICOM’s Revised Treaty of Chaguaramas  OECS’ Revised Treaty of Basseterre
2. Creation of Individual Rights in Two Regimes  CARICOM – through CCJ
 OECS – through Economic Union legislation & ECCA
3. Potential Mechanisms for Protection of Individual Rights
 Regionally
 Nationally
4. Conclusions and Future Questions
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(c) Dr David S Berry, 2014
OVERVIEW OF TREATY FRAMEWORKS
 CARICOM  Collapse of West Indies Federation (1962)
 Agreement Establishing the Caribbean Free Trade Association (CARIFTA, 1965)
 Treaty Establishing the Caribbean Community (1973)
 Annex –The Caribbean Common Market
 Revised Treaty of Chaguaramas including the CARICOM Single Market and Economy (2001)
 Agreement Establishing the Caribbean Court of Justice (2001)
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 OECS
 Collapse of West Indies Federation (1962)
 West Indies Associated States Council of Ministers (1966)
 Agreement Establishing the East Caribbean Common Market (1968)
 Treaty Establishing the Organisation of Eastern Caribbean States (1981)
 Annex I ‐ Agreement Establishing the East Caribbean Common Market
 Revised Treaty of Basseterre Establishing the Organisation of Eastern Caribbean States Economic Union (2010)
(c) Dr David S Berry, 2014
REVISED TREATY OF CHAGUARAMAS
Key Changes
Organs
 Simpler structure Conference of Heads of Government
 Single treaty
 Fewer organs
 Each organ can make binding decisions
Community Council of Ministers
 Move away from unanimous voting (less possibility of a veto)  Requirements for cooperation and consultation
 Regional enforcement (CCJ), but retention of transformation requirement
 Ambitious goal: “full integration of the national markets of all Member States of the Community into a single unified and open market area”
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Council for Finance and Planning
Council for Trade and Economic Development
Council for Foreign and Community Relations
Secretariat and Secretary General (c) Dr David S Berry, 2014
Council for Human and Social Development
REVISED TREATY OF BASSETERRE
Key Changes
Organs
 Changed structure  Three unified treaties – RTB, Dispute Settlement Annex, Protocol of OECS Economic Union  Fewer organs
Authority of Heads of Government
 Three organs can make binding decisions: Authority and both Councils
 Balanced decision‐making process: (1) Commission (technocrats), (2) Assembly (popular voice), (3) Authority or Councils (States)
Council of Ministers
OECS Assembly
(Protocol)
Economic Affairs Council
 Exclusive competences of OECS – Art 14
 Regional (Eastern Caribbean Court of Appeal) or national enforcement ‐ direct effect
OECS Commission
 Ambitious goal: “the creation of a single financial and economic space comprising Protocol Member States”
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(c) Dr David S Berry, 2014
CONCEPTUAL DEVELOPMENTS: CREATION OF RIGHTS
 Both the RTC and RTB speak almost exclusively to rights and obligations of Member States and the Community/Union. Eg:
ARTICLE 87
Import Duties
1. Save as otherwise provided in this Treaty, Member States shall not impose import duties on goods of Community origin.
 Sentence construction:
 Subject – Member States
 Object – goods
 Where are the people of the Community? Where are you and I?
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(c) Dr David S Berry, 2014
CREATION OF RIGHTS: CARIBBEAN COURT OF JUSTICE
 The Caribbean Court of Justice, in the case of Trinidad Cement Ltd and TCL Guyana Inc v Guyana [2009] CCJ 1 (OJ), at para [32], establishes that rights for persons (juridical and natural) can be derived from the RTC:  ‘[32] Rights and benefits under the RTC are not always expressly conferred …. Many of the rights, however, are to be derived or inferred from correlative obligations imposed upon the Contracting Parties. Unless specifically otherwise indicated, the obligations set out in the RTC are imposed on Member States (or a class of Member States) collectively. Where an obligation is thus imposed, it is capable of yielding a correlative right that enures directly to the benefit of private entities throughout the entire Community.’
 Result: potentially most obligations in RTC can give rise to rights for persons
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(c) Dr David S Berry, 2014
CREATION OF RIGHTS: OECS
 RTB Art 5 enshrines the doctrine of direct effect:
 5.3 Without prejudice to the generality of the foregoing ‐
 (a) a full Member State which is independent undertakes to enact the legislation necessary to [enable OECS] … Acts, Regulations and Orders [to] have direct effect in the laws of the Member State;
 Result: depending upon the form of national legislation, OECS Acts, Regulations and Orders will create binding rights and obligations for nationals which can be enforced under national law (i.e., before national courts)
 Note as well that the ECCA may also adopt correlative rights doctrine of CCJ…
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(c) Dr David S Berry, 2014
PROTECTION OF ‘INDIVIDUAL’ RIGHTS
 All of the cases over which the CCJ has accepted original jurisdiction over to date have been cases brought by persons, mainly by juridical persons (companies) – with the notable exception of the recent case of Shanique Myrie v Barbados, which involved a natural person.
 These rights are not human rights, per se. But they involved juridical persons holding states and the Community accountable for obligations imposed by the RTC. Enforcing these RTC rights has implications for individuals (natural persons) throughout the region – since they will affect things like the availability of goods and services, pricing, competitiveness, etc.
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Eight original jurisdiction cases to date:
1. Trinidad Cement Limited and TCL Guyana Inc. v. Guyana 2. Trinidad Cement Limited v. CARICOM 3. Johnson v. CARICAD 4. Hummingbird Rice Mills v. Suriname and CARICOM 5. Trinidad Cement Ltd v Competition Commission
6. Shanique Myrie v Barbados
7. Maurice Tomlinson v Belize and Trinidad and Tobago
8. Rudisa Beverages and CIDI v Guyana
(c) Dr David S Berry, 2014
PROTECTION OF ‘INDIVIDUAL’ RIGHTS
 Rights exercised by juridical persons to date include:
 Right to require states to impose a Common External Tariff (tax) on non‐Community origin goods (i.e., cement from the Venezuela, flour from the Netherlands),
 Right to require states to obey decisions of Community organs (Conference),
 Right to require the organs of the Community and the Competition Commission to follow the rules and procedures set out in the RTC
 Right to import Community origin goods without charges of equivalent effect to customs duties
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Eight original jurisdiction cases to date:
1. Trinidad Cement Limited and TCL Guyana Inc. v. Guyana 2. Trinidad Cement Limited v. CARICOM 3. Johnson v. CARICAD 4. Hummingbird Rice Mills v. Suriname and CARICOM 5. Trinidad Cement Ltd v Competition Commission
6. Shanique Myrie v Barbados
7. Maurice Tomlinson v Belize and Trinidad and Tobago
8. Rudisa Beverages and CIDI v Guyana
(c) Dr David S Berry, 2014
PROTECTION OF INDIVIDUAL RIGHTS
 In the case of Shanique Myrie v Barbados individual rights were upheld.  But note human rights per se were not upheld – her protected rights were those related to free movement (an economic, or CSME, right).
 Nevertheless the Myrie Case shows the potential of the RTC to assist ordinary CARICOM nationals.
 Rights upheld in relation to Shanique Myrie included:
 Right to require states to obey binding Conference decisions
 Rights related to free movement, including the right to hassle‐
free travel and automatic stay of six months for Community nationals
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(c) Dr David S Berry, 2014
PROTECTION OF INDIVIDUAL RIGHTS
 Potential rights in the case of Maurice Tomlinson v Belize and Trinidad and Tobago:  Right of CARICOM national not to be refused entry because of sexuality (i.e., homosexuality)
 Right to require state to repeal laws contrary to either the RTC or binding decisions of organs of Community
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(c) Dr David S Berry, 2014
PROTECTION OF INDIVIDUAL RIGHTS
 Other methods to protect individual human rights under RTC:
 Interpretation of RTC in light of Charter of Civil Society
 Charter as a non‐binding human rights instrument could be used to flesh out meaning of provisions of RTC
 Protection of individual human rights under RTC and RTB:
 Through operation of general rules of international law. As noted by the CCJ in Shanique Myrie v Barbados [2013] CCJ 3 (OJ) at para [10]  The Court has no jurisdiction to adjudicate violations of international human rights treaties and conventions. … It should be noted, however, that the Court is an international court authorised to apply “such rules of international law as may be applicable”2 of which human rights law is an inextricable part. It stands to reason therefore that, in the resolution of a claim properly brought in its original jurisdiction, the Court can and must take into account principles of international human rights law when seeking to shape and develop relevant Community law.
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(c) Dr David S Berry, 2014
PROTECTION OF INDIVIDUAL RIGHTS
 Protection of individual human rights under RTC and RTB:
 Through use of general principles of [Community/Union] law. Other international and regional courts have used general principles of law to bring human rights into the relevant treaty regime. See e.g.,  South West Africa Cases (Ethiopia v South Africa, Liberia v South Africa) (Second Phase) [1966] ICJ Rep 3 (Dissenting Opinion of Judge Tanaka).
 Case 29/69 Stauder v Ulm [1969] ECR 419.
 Through national enforcement mechanisms  In CARICOM, assertion of human rights in a domestic case that also raises RTC rights –
matter would be referred to CCJ and could lead to development of CARICOM‐related human rights obligations
 In OECS, since Acts, Orders and Regulations are to be directly effective, these will have to be interpreted by national courts.
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(c) Dr David S Berry, 2014
CONCLUSIONS AND OBSERVATIONS
 In today’s talk I have tried to highlight recent developments in Caribbean integration, developments discussed in various places in my book.  I have suggested that both CARICOM and the OECS have developed in significant ways not likely contemplated by Sir Arthur Lewis
 [Any ‘agony’ today would not be caused by inability to integrate. Rather, some states may feel that the integration process is happening too quickly]
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(c) Dr David S Berry, 2014
CONCLUSIONS AND OBSERVATIONS
 Both the CARICOM and OECS regimes regulate the conduct of states and regional organisations and also have the potential to create rights for persons, both juridical and natural
 These developments have not gone unnoticed. The case of Shanique Myrie v Barbados certainly fired the popular imagination. As a result the CCJ and the RTC appear to have gained traction with the wider Caribbean public  However we need to develop a greater understanding of the CARICOM and OECS legal regimes, especially now that they are being applied to concrete cases
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(c) Dr David S Berry, 2014
CONCLUSIONS AND OBSERVATIONS
 Issues for future resolution:
 To what extent can RTC regime be litigated before national courts and tribunals  Incorporation of RTC by means of CARICOM Acts – to what extent are these to be considered ordinary statutes, subject to judicial interpretation and application?
 To what extent will RTC obligations trump inconsistent national laws, and what laws? How would this be achieved (strike down, disapply)?
 How will OECS Acts, Regulations and Orders relate to the domestic law of OECS member states? Is there a hierarchy? Do OECS rules trump national rules, including the constitution?
 All of these issues require further critical reflection and discussion…
Thank you
11/12/2014
(c) Dr David S Berry, 2014